Doherty v Secretary of the Department of Education

Factual Findings

1. The applicant commenced employment with the respondent in April 2001 and he last performed work as a classroom teacher at the Central Sydney Intensive English School some time in November 2018.
2. Following this, the applicant utilised long service leave and was then placed on unauthorised absence from 17 December 2018 and some unknown point in time was placed on sick leave.
3. On or around 20 January 2020, the applicant made a workers compensation claim and liability was accepted by Allianz, the respondent's workers compensation insurer.
4. On 17 August 2022, an independent medical expert, Dr. Shannon Paisley, diagnosed the Applicant with Persistent Depressive Disorder and traits suggestive of Paranoid Personality Disorder. Further, the Dr. opined that the Applicant was not fit to return to work in his substantive position now or in the future.
5. In a report of 13 October 2022, the applicant's general practitioner Dr. Eric Lim, diagnosed the applicant as having Major Depressive Disorder and trauma-related symptoms and opined that the applicant was unfit for work and unlikely to return due to psychological distress.
6. On 18 January 2023, in a certificate of capacity signed by Dr. Eric Lim, the Dr. stated that the applicant had capacity for some type of work being 2 hours per day, 2 days per week, but unlikely as a School Teacher. Identical certificates of capacity were provided to the respondent which were signed by various general practitioners which were dated 20 February 2023, 21 March 2023, 19 April 2023, 16 May 2023 and 13 June 2023.
7. In a report dated 17 February 2023, the applicant's treating psychiatrist Dr. David Kumagaya, diagnosed the applicant with Major Depressive Disorder.
8. The respondent arranged for Dr. Ian Smith, an injury management consultant, to provide a report, which he did on 7 March 2023. In this report, Dr. Smith stated that the 2 hours per day, 2 days per week in the certificates of capacity were a token statement and not conducive of a return to work.
9. A further report from Dr. Kumagaya, dated 21 March 2023, was received by the respondent's insurer, in which it was stated that the applicant has no work capacity due to major depressive disorder and he was unlikely to return to pre-injury duties without significant improvement.
10. In a supplementary report dated 27 March 2023, Dr. Smith opined that the applicant was permanently unfit for work.
11. On 19 April 2023, Ms Belinda Joudo, who was the applicant's case manager and an employee of the respondent, completed a "Medical Retirement Submission" which included a recommendation that the applicant be medically retired.
12. The recommendation was supported internally by the Manager, Injury Management on 2 May 2023.
13. On 3 May 2023, the respondent sent correspondence dated the same day to the applicant's work email address, which put the applicant on notice that the respondent was considering medically retiring the applicant on 23 May 2023. The correspondence also informed the applicant that he had an opportunity to put any further information he wished to the respondent prior to the decision.
14. In file notes prepared by Ms Joudo, she recorded that she had made a number of unsuccessful calls to the applicant on 3 and 5 May 2023.
15. On 23 May 2023, Ms Jan Green accepted the recommendation that the applicant's employment was terminated on account of medical retirement and correspondence confirming this was sent to the applicant's work email account.
16. On 20 July 2024, termination payments in excess of $40,000.00 was paid into the applicant's personal bank account.

APPROACH

1. The guiding consideration in relation to an application made pursuant to s 84 of the Act is for the Commission to determine whether the dismissal was harsh, unreasonable or unjust: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325.
2. It is the applicant who bears the onus to prove whether the dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
3. The leading authority as to what constitutes harsh, unreasonable or unjust is contained in the following passage from the joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465: "It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
4. Section 88 of the Act provides that the Commission may take the following matters into account when determining whether a dismissal was unfair: 1. whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ; 2. if any such reason was given its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment; 3. whether a warning of unsatisfactory performance was given before the dismissal; 4. the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed; 5. whether or not the applicant requested reinstatement or re-employment with the employer; and 6. such other matters as the Commission considers relevant.
5. The determination of whether a dismissal was unfair, is made with reference to the circumstances as they existed at the time of the dismissal: Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; Starr v Commissioner of Police [2001] NSWIRComm 226; Alexander v Commissioner of Police [2009] NSWIRComm 3.
6. Dismissal on account of a medical condition that prevents an employee from performing the inherent duties of the position for which they were employed may constitute a proper basis for a termination. However, the dismissal may still be unfair it there was a lack of procedural fairness or the employer did not consider or provide reasonable steps to accommodate the employee: Ceniza v Secretary, Ministry of Health in respect of NSW Health Pathology South [2022] NSWIRComm 1002.

Submissions

1. The applicant's argument in support of his application was twofold, with the first being that he was denied procedural fairness in not being put on notice that the respondent was considering terminating his employment. Secondly, that the respondent should have considered his prospects of rehabilitation into the foreseeable future.
2. As for the respondent, it was submitted that the dismissal was not unfair for the following reasons: 1. the applicant's dismissal was not unfair because there was a sound basis for the dismissal, which was based on comprehensive medical evidence that the applicant could not perform the inherent requirements of his job; and 2. the Commission cannot find the applicant was denied procedural fairness given the evidence in the proceedings.

Consideration

1. Turning to the procedural fairness submission raised by the applicant, the Commission would have to accept the applicant's evidence that he did not see nor was he aware of the correspondence of 3 May 2023 until sometime after the dismissal.
2. For the reasons that follow I find that the applicant was not a credible witness.
3. Firstly, the applicant in the extension of time hearing gave the following answer in cross examination in relation to the payment of his termination monies into his bank account of over $40,000.00. Q. In fact, the transfer that would have appeared, or the deposit that would have appeared on your own bank account statements, I'm putting to you that that would have included that the payment was made by the Department of Education. Do you understand what I'm saying there? A. No. It doesn't - the - I don't know - they don't - it wasn't - they don't answer it like that, no. It's just some funds had come in. There was some little code thing and - and, yeah. I didn't know who it was.
4. During the substantive hearing, the applicant was presented with copies of his bank statement which clearly displayed the payment being from the respondent. The applicant failed to concede that he knew that the payment was from the respondent at the time he first saw the entry in his account.
5. Secondly, in the extension of time hearing, the applicant gave evidence to the effect that he had filed the application on 23 August 2023, claiming that this was within 21 days of when he first became aware that his employment was being terminated. Remarkably, the applicant in the substantive hearing filed material which included an email dated 27 July 2023, from himself to a legal practitioner in which the applicant stated that he had been dismissed.
6. Thirdly, during the cross examination of the applicant in the substantive proceeding, the applicant admitted that he had performed tutoring work for individuals for which he had been paid for. However, at the time he performed this work, the applicant signed a declaration to the workers compensation insurer on numerous occasions confirming that he had not performed any work nor received any payment for work performed. When it was put to the applicant that he had misled the insurer, he stated that he had phoned someone from the insurer and told them.
7. A summons for production was issued to the workers compensation insurer seeking any documents that would evidence the alleged phone call between the applicant and the insurer concerning the afore mentioned work and payments. No documents were produced and given the importance of the issue in relation to the payment of insurance, I conclude that the applicant did not inform the insurer of the work performed and the receipt of payments.
8. Finally, I make the general observation that the applicant was on numerous occasions nonresponsive and evasive in terms of giving of his evidence.
9. Given the above credit finding, I cannot accept the applicant's evidence as to not being provided with an opportunity to provide further information to the respondent prior to the decision being made to dismiss him from his employment. I therefore reject the applicant's submission regarding alleged denial of procedural fairness.
10. When the respondent considered dismissing the applicant from his employment, the applicant had not worked for the respondent for just under four and a half years due to his medical condition.
11. The medical reports considered by the respondent in relation to the applicant's fitness to perform his duties within any reasonable period were provided by the following medical practitioners. 1. Dr. Shannon Paisley dated 17 August 2022; 2. Dr. Eric Lim dated 13 October 2022; 3. Dr. Ian Smith dated 27 March 2023; and 4. Dr. David Kumagaya dated 21 March 2023.
12. Each of these reports were unequivocal in concluding that the applicant was not fit to perform his preinjury duties and unlikely to do so into the foreseeable future. In particular, the report of Dr. Kuamgaya, the applicant's treating Psychiatrist, contained the following prognosis: Mr Doherty's prognosis with respect to work is guarded. He has not worked in any capacity since 11 March 2019, and continues to experience symptoms of his major depressive disorder despite treatment. Unless he were to experience a significant improvement in his mental state and functioning, it is unlikely that he will be able to return to work to his pre-injury duties.
13. As to the applicant's submission concerning rehabilitation, the medical evidence as it was at the time of the dismissal does not disclose any basis upon which the respondent could form a view that further investigation into rehabilitation was warranted.
14. Considering the certificates of capacity provided by the applicant up to the time of dismissal, none of which indicated that the applicant was fit to return to pre-injury duties in the foreseeable future, it is reasonable to conclude that the applicant had little to no capacity to perform his preinjury duties. I find this to be the case and provided a sound basis for dismissing the applicant from his employment.
15. For the reasons detailed above, I find that the dismissal of the applicant was not harsh, unreasonable or unjust and I dismiss the application and I so order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 January 2025